Why Is Brain Imaging Important In Criminal Cases

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What Do You Have To Say To Other Firms Not Adopting Brain Imaging?

First of all, in Florida, you are looking at Rule 3.850 in effective assistance of counsel motion and you are also looking at potential petition for ineffective assistance of counsel under 3.851 which is the death penalty rule if neuroscience has not been used. In my view, if somebody is handling a criminal case and there are clear and present indicators that there is a significant behavior problem that is a result of brain dysfunction that is not readily apparent without using imaging but it’s readily apparent based on prior record, in particular. Prior record is, in my view, is the number one thing that is a red flag for brain imaging.

If lawyers are not using that as part of their defensive arsenal, in mitigation, in sentencing, in negotiations for reductions and negotiated dismissals, I think that there is going to come a day where the bar is going to say that is per se negligence. So that’s what I have to say for them, the case you handled 5 years ago, you didn’t do brain imaging on, you’re going to need to consider the ramifications of that and especially in going forward because I take the view that; certainly in death cases and in major felonies, if lawyers are not looking at mental health mitigation, period, they are ineffective as advocates on behalf of their clients. So this whole stuff of “it won’t work. It’s bad for business. The brain imaging costs too much.”

It runs around $3500 to have one of these studies done. It’s pricey, it’s not covered by insurance but when you are talking about $3500 compared to a month of incarceration which is much more expensive, not to the individual paying of course, but to society as a whole, I think that’s a real problem because we are just sitting over there going, “Oh. It costs too much to do this but we have plenty of money for prisons.” It doesn’t make sense and from the perspective of a practicing lawyer, I know what’s going through their heads. They are thinking, ”that’s $3500 that could be in my pocket as my fee.” That’s a lot of what’s going on.

But the reality is that lawyers in the defense forum need to be using this material or I can tell you right now. I don’t sit on any disciplinary committees or grievance boards or anything like this in any state, for any reason but if I did, question number one that I would be asking in a lot of cases was “What type of mental health mitigation was pursued?” and if it was not, why not? That’s going to be a very hard question for a lot of lawyers to answer, I think.

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